Raleigh Family Law Attorney explains North Carolina prenuptial agreements.
Wired PR News — Premarital agreements (also known as prenuptial agreements) are important tools for clarifying the rights and obligations after marriage of people intending to marry. A premarital agreement can settle, in advance of the marriage, certain rights in the event of separation and divorce, or upon a party’s death. For example, the parties may agree that certain property that might otherwise be classified as marital property, and that would therefore be subject to equitable distribution in the event of divorce, will not be subject to equitable distribution but will remain the separate property of the party with title to the property. This type of provision is frequently included in premarital agreements where one party owns a business prior to the marriage or has some other significant separate property interest owned prior to marriage. In many situations, the marriage is the second marriage for one or both parties, and one or both want to have the freedom, at his or her death, to leave his or her estate to children born from the prior marriage, rather than to the new spouse. To that end, premarital agreements also often contain waiver of estate rights.
In 1987 North Carolina adopted the Uniform Premarital Agreement Act [hereinafter, the “PMA Act”]. People entering into premarital agreements in North Carolina on or after this date were/are able to contract about a variety of subjects, including property rights. The PMA Act also allows for alimony rights to be limited or eliminated entirely in a premarital agreement. Under the PMA Act, premarital agreements may also cover a variety of other topics depending on the specific needs and requests of the parties, as long as the provisions do not violate public policy. Whether a provision would violate public policy must be evaluated on a case by case basis.
The most common defenses to enforcement of a premarital agreement are: that it was not voluntarily executed; that it was signed due to fraud, misrepresentation, duress, undue influence; and/or that the agreement is unconscionable. Many times a party will want to avoid enforcement of the agreement on the grounds that he or she did not have an attorney when it was signed or that it was given to him or her immediately before the wedding, often with the warning that if the agreement is not signed the wedding will be canceled. However, the mere fact that one party was not represented by counsel or that the agreement was not presented to the party until the eve of the wedding typically will not, standing alone, render the agreement void or unenforceable. Rather, North Carolina appellate courts consider the totality of the circumstances surrounding the execution of the premarital agreement, including such factors as the relative education and business sophistication of the parties, whether each party had an independent attorney, the timing of when the agreement was negotiated relative to the wedding date and whether adequate financial disclosures were provided before the agreement was signed.
If you have a question regarding whether you need a premarital agreement, or whether a premarital agreement you executed is enforceable, you should contact a qualified family law attorney to discuss the specific facts and circumstances of your case.
Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case.
S. Nicole Taylor. Nicole Taylor, a Raleigh Family Law Attorney, is a leading North Carolina Divorce Lawyer. Ms. Taylor is a member of the North Carolina Family Law Firm of Gailor, Wallis & Hunt, PLLC.
Gailor, Wallis and Hunt, PLLC, a Raleigh, North Carolina Family Law Firm at 1101 Haynes Street, Suite 201, Raleigh, NC 27604, Tel: 919-832-8488 or go to www.gailorwallishunt.com